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Monday, 13 July 2009

Served by mail

Edit: Elucubrator's post on DPP v Angell [2010] VSC 76 from March 2010 is useful for distinguishing the operation of s 160 from the Road Safety Act's s 25.








A couple of people I've spoken with recently have told me they think that s 160 of the new Evidence Act 2008 might affect some claims of honest and reasonable mistake, particularly licence-related charges. It's just my opinion, of course, but I'm not so sure that it will. The new provision provides:



160. Postal articles



(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.


It goes on to exclude the postal rule of contract and spell out what a working day is, but that's pretty much all there is to it.



Charges under s 30 of the Road Safety Act 1986 are often contentious because of the mandatory imprisonment that results from a second finding of guilt. If the alleged period of suspension stems from demerit points and the notification was by mail, it's often difficult for the prosecution to disprove a Proudman v Dayman "defence". If an accused can prove (or at least leave a court in doubt) as to whether at the time of the alleged offence they had an honest and reasonable belief in a state of facts which, had they been true, would have meant they were guilty of no crime, an offence of strict liability won't have been proven: Proudman v Dayman(1941) 67 CLR 536.



In my view, s 160 won't get the prosecution any closer to eliminating that reasonable doubt than the current legal position. If the Court is entertaining some doubt about whether an accused had a mistaken belief about their disqualification or suspension, this new provision might allow a court to infer that the letter arrived, but doesn't establish that the accused actually saw it. It's the accused's belief — not the service of the notice — that's at the heart of a Proudman v Dayman claim. Section 160 isn't that much different to a provision already included in the Road Safety Act, at s 25(4A):



(4A) A demerit point option notice or a notice under subsection (3B)(c) sent by post addressed to the holder of the licence or permit at his or her current address as shown in any record maintained under this Act must be taken to have been served on that person 14 days after the date of issue of the notice unless at any time after that period of 14 days the Corporation is satisfied that the notice has not been served on that person.


The principle appears the same. If anything, the phrase must be taken to have been served on that person is more strongly worded than s 160. But this existing deeming provision doesn't seem to have the effect of cancelling out the Proudman v Dayman defence. Even if that's not the case, the new provision creates a fairly weak presumption. If there's evidence before a Court that raises honest and reasonable mistake, the chances are good that evidence sufficient to raise doubt about the presumption will also be present.

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